Parental Responsibility

Section 60CC of the Family Law Act 1975 provides that children are entitled to have a meaningful relationship with both parents even they are separated and/or divorced. This means the children can spend time and communicate with their parents on a regular basis while the parents jointly share the duties and responsibilities regarding the welfare, care, and development of the children. However, the assumption of equal shared parental responsibility for the children does not necessarily mean the children needs to spend equal time with both parents.

What is equal shared Parental Responsibility?  

It is presumed in Australian Family Law that each parent will have equal shared parental responsibility unless exceptions apply. The presumption encourages co-operative parenting by acknowledging the children’s right to have a meaningful relationship with both parents whilst allowing both parents to have an equal say in the long-term decision making involving the children. The legal presumption does not apply if:

  • There are reasonable grounds to believe that a parent has abused the child and any other child in the parent’s family or otherwise committed family violence; or
  • It would not be in the child’s best interests.

What is sole parental responsibility?

An order for sole parental responsibility means that you can make all of the major long-term decisions for your child without having to consult the other parent. Section 4 of the Family Law Act 1975, major long term decisions include the child’s

  • Education
  • Health;
  • Religion;
  • Culture;
  • Name; and
  • Living arrangements

Nonetheless, it is worth noting that having sole parental responsibility does not mean the other parent cannot spend time with the child.

How to obtain sole parental responsibility?

The children’s interest is always the Court’s paramount consideration in making any parenting orders. For the Court to grant sole parental responsibility to one parent, the court needs to be satisfied that it will not be for the best interest of the child if equal shared parental responsibility were to be ordered.

However, rarely does the court grant sole parental responsibility to one parent. For example, in the case of Small & Small [2016] FamCA 433, The Court granted sole parental responsibility to the mother under exceptional circumstances.  In that case, the mother made a serious of allegation of sexual abuse and family violence perpetrated by the father against both her and the children who had special needs. The Court, amongst other things, considered the following factors:

  1. Whether there is an unacceptable risk to the children from the father;
  2. Whether the benefits of a meaningful relationship with one party outweigh the potential harm caused to the children by resuming a relationship following a prolonged absence of the father in the children’s life;
  3. Whether the children will be able to ‘realistically cope with seeing their father in a supervised environment over an extended period of time” considering the children’s special needs concerning extreme anxiety and speech difficulties; and
  4. What orders may be made that are least likely to lead to further legation factoring in the children’s extreme vulnerability

For the Court to grant sole parental responsibility to one parent, sufficient evidence with details on all issues relevant to their claim against the other parent needs to be presented to the court, proving that if equal shared parental responsibility were granted, the child would be harmed by the other parent. Evidence such as an AVO issued by the police, police reports; medical reports and/or diagnoses issued by a psychiatrist, or witness statement of psychological or physical harm will be of assistance for the Court when deciding what is in the child’s best interests and whether it is appropriate to grant sole parental responsibility to one parent.

We can help

Should you consider yourself in a situation that urgent legal advice is needed, please contact Genesis Edge Law Group to speak to one of our highly qualified and experienced family lawyers. To find out how we can assist you with your parenting disputes and represent you in your Family Law proceedings, please call our Family Law hotline 1300 559 888 or fill out the enquiry form here.